An accused can be convicted on the basis of circumstantial evidence if it establishes a clear link between the accused and the crime, supported by credible witness testimony.

C.A.V. JUDGMENT 

(Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH)

Date: 18-04-2017

This appeal is preferred against the judgment of conviction dated 04.05.2011 and order of sentence, dated 07.05.2011, passed by the learned Additional Sessions Judge-cum- F.T.C.-I, Bhagalpur in Sessions Trial No. 585 of 2008, whereby the sole appellant has been convicted under Section 302 /34 of the Indian Penal Code and sentenced to undergo life imprisonment along with a fine of Rs. 5,000/-.

2. The prosecution case, in brief, as made out in the fardbeyan of Babu Lal Das (PW-5) of village- Bhatauria, P.S.- Madhusudanpur, District- Bhagalpur recorded by Sub Inspector, P.N.Tiwari of Madhusudanpur Police Station on 31.10.2007 at village Bhatauria near Tunia Pokhar at 3:30 P.M, is as follows:

(i) The informant stated that on 31.10.2007 in the day time, his co-brother Binay Das (husband of wife’s sister) , aged about 20 years, also resident of the same village- Bhatauria, came to his house and enticed his 06 years old grandson to accompany. The accused Binay Das took his grand son to Tunia Pokhar, where he along with his friend/associate Amit Kumar Das killed him near the small mango and Tar trees in the eastern-southern corner of the Pokhar by slitting his neck with the branch (Daffi) of a Tar tree which has sharp edges. His grandson cried in pain, whereupon villagers rushed towards him and saw Binay Das and Amit Das fleeing from the place of occurrence. On hulla of the villagers, the informant along with his second wife Gango Devi (PW-1) and daughter-in-law Bisokha Devi (PW-4) and other villagers ran towards Pokhar, and found his grandson dead, his neck slitted by some sharp cutting weapon. Blood in large quantity was found on the ground. They also found blood on the Daffi (Dali) of the Tar tree, located near the body.

(ii) The occurrence took place as Binay Das had suspicion that his wife Shabnam Devi had lodged a criminal case against him with Madhusudanpur Police Station at the behest of informant and his family members. Appellant’s wife Shabnam Devi happens to be the Mausi of the deceased Makhan Kumar.

3. On the basis of the fardbeyan, the police registered Madhusudanpur P.S.Case No. 260 of 2007 dated 31.10.2007 under Section 302 /34 of the Indian Penal Code against the appellant and one Amit Das.

4. The Investigating Officer, during the investigation, inspected the place of occurrence and also seized the Tar branch (Daffi) with blood, after severing it from the stem of the tree. The I.O. took statement of witnesses and obtained the post-mortem report and finding the case to be true submitted charge sheet under Section 302 /34 of the Indian Penal Code against the appellant and Amit Das showing the latter as absconder. On receipt of the charge sheet, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions for trial. Charge was framed against the sole appellant under /34 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried.

5. The case of the defence, as per the statement recorded under Section 313 of the Cr.P.C. as well as from the mode of cross- examination, is one of false implication on account of admitted enmity with the prosecution side. However, the defence neither examined any witness nor produced any documentary evidence in support of his case.

6. The trial court, relying upon the evidence of informant and other eye witnesses, convicted the sole appellant under Section 302/34 of the Indian Penal Code.

7. The prosecution, in order to substantiate its case, examined 12 witnesses, namely, PW-1 Gango Devi is the second wife of the informant, PW-2 Janardan Mandal, who was declared hostile during